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Home My WebLink About05-30-08 (5) IN RE: ESTATE OF ROBERT M. MUMMA, Deceased o ~~ IN THE COURT OF COMMON P~S OF ~ . "-~-'1 --..:.. CUMBERLAND COUNTY, PENNS~ A~ . '::q ~ .,..., ........., ORPHAN'S COURT DIVISION .:::-~ :11: Y? U1 N .) NO. 21-86-398 FURTHER MOTION FOR REMOVAL OF EXECUTRICES and/or TRUSTEES PURSUANT TO ORPHANS' COURT ORDER OF OCTOBER 3. 2007 AND NOW comes Robert M. Mumma, II, pro se, and files the instant Further Motion for Removal of the Executrices and/or Trustees, and in support thereof avers as follows: 1. The undersigned Movant is Robert M. Mumma, II, an adult individual, acting pro se in the instant case. 2. The Movant is a beneficiary of the above-captioned Estate and the Trusts created under the Will of the Decedent. I 3. The Movant is a trustee of contingent beneficiaries of the above-captioned Estate and Trusts. 1 On December 21, 2004, the Movant filed a Motion to Compel Discovery with its Paragraph #4 averring that he is a beneficiary ofthe Estate and the Trusts; on December 29, 2004, the Executrices and/or Trustees filed a Response with its Paragraph #4 averring: "Admitted." See, Rizzo v. Haines. 555 A.2d 58 (Pa. 1989)Gudicial admissions in pleadings are conclusive in the case in which they are filed; such pleadings cannot later be contradicted by the party who has made them and the trial court abuses its discretion if it ignores the admission); DeMuth v. Miller. 652 A.2d 891 (pa. Super. 1995)(a judicial admission has the effect of a confessory pleading in that the fact is thereafter to be taken for granted, so that the opposing party need offer no evidence to prove it and the party by whom the judicial admission was made is not allowed to disprove it). 1 oJ 4. In accordance with prior court orders entered in this matter, including, but not limited to, this Court's Order dated February 23,2000, the Movant has standing before the Orphans' Court in this case. 5. The fIrst petition for removal of the Executrices was fIled on January 27, 1989 by the Movant's then counsel John Fowler, Esquire and Pepper Hamilton. 6. In an Order dated March 30, 1989, Judge Sheely held that the hearing set for the petition for removal of the Executrices on April 3, 1989 was continued generally. 7. On March 13, 1991, a Petition to Defer and Postpone Action Upon Petition for Removal of the Executrices was fIled which alleged that issues central thereto may be answered in subsequent proceedings attendant to the previously fIled Petition to Compel First and Partial Accountings and Annual Accountings. 8. No further proceedings were held relative to the fIrst petition for removal of the Executrices. 9. The second petition for removal of the Executrices was fIled on May 14,2003 by the Movant's then counsel James West, Esquire. 10. A motion for a hearing on the second petition for removal of the Executrices was fIled on November 20,2003 by the Movant's then counsel, Chad Bogar, Esquire. 11. The undersigned Movant then fIled pro se another motion for a hearing on the second petition for removal of the Executrices on February 25,2004. 12. In an Order dated March 8, 2004, Judge Hoffer scheduled a hearing on the second petition for removal of the Executrices to be held on April 12, 2004. 2 13. Judge Hoffer conducted a status conference on March 24,2004 wherein the second petition for removal of the Executrices was consolidated with the Objections to the Final Accounting. 14. Judge Hoffer's Order of March 24,2004 continued generally the April 12, 2004 hearing on the petition for removal of the Executrices pending a future hearing on any objections to be filed to the fmal accounting. 15. In a Petition for Appointment of Auditor filed January 5, 2005, the Executrixes of the above-captioned Estate sought the appointment of an Auditor "to pass upon the objections" that were filed by the Movant which the Executrixes averred had "raise[d] questions offad'. 16. In an Order dated January 6, 2005, Judge Oler appointed Taylor Andrews, Esquire as Auditor in the above-captioned Estate. 17. On January 31, 2005, the Movant filed a motion to recuse Taylor Andrews as the Auditor and to appoint a new auditor. 18. Judge Oler conducted a hearing on the motion to recuse Taylor Andrews on March 11,2005. 19. As a result of the hearing on March 11,2005, Judge Oler issued a series of Orders relative to this case. 20. One of Judge Oler's Orders dated March 11,2005 held that "to the extent that it is preserved of record in this case, the issue of the requested removal of Barbara McKimmie Mumma and Lisa Mumma Morgan as executrixes and/or trustees under the will of Robert M. Mumma as allegedly raised by prior counsel for Robert M. Mumma, II, is relegated to disposition in the first instance by the auditor, along with the auditor's other responsibilities in the case." 3 21. Subsequent to the appointment ofthe Auditor in January 2005, upon the filing of a motion or petition by the parties hereto, Judge Oler has utilized a practice of referring said filings to Attorney Andrews for purposes of a recommended order and/or an interim report. 22. Judge Oler conducted the most recent hearing or status conference in this matter on October 3,2007. 23. In conjunction with said hearing, Judge Oler issued an Order dated October 3, 2007 which contained three numbered paragraphs that provided as follows: 1. Depositions or further depositions of Lisa Mumma Morgan, Barbara McKimmie Mumma, and George W. Hadley, to be held in Florida, shall be noticed by the estate and completed before November 22,2007. 2. Any supplemental objections to be filed by Robert M. Mumma, II and/or Barbara Mann Mumma shall be filed, and any expert reports of the objectors shall be served upon all other interested parties, on or before January 31, 2008. 3. On or before Mav 31. 2008, all additional discovery relating to any supplemental objections filed shall have been completed, any further procedural or dispositive-type motion shall have been filed, and any expert reports of the estate shall have been served on all other interested parties. (emphasis added). 24. Notwithstanding the fact that the Orphans' Court appointed Taylor Andrews, Esquire as the Auditor in this case, and notwithstanding the fact that Judge Oler has referred multiple issues to him for the purposes of a recommended order and/or an interim report, the Auditor has not issued an interim report since he filed the "Auditor's Interim Report, December 2005" on December 30, 2005 which addressed issues pertaining to discovery. 4 25. Notwithstanding the fact that the Orphans' Court appointed Taylor Andrews, Esquire as the Auditor in this case, and notwithstanding the fact that Judge Oler has referred multiple issues to him for the purposes of a recommended order and/or an interim report, the Auditor's most recent pre-hearing conference was conducted on October 19,2006, over one (1) year and seven (7) months ago. 26. By letter dated February 11,2008, the Auditor endeavored to schedule another pre-hearing conference in this case on February 29,2008 and then again on March 3,2008; however, counsel for certain parties had promptly advised the Auditor in writing of scheduling conflicts regarding said proposed dates. 27. Subsequently thereto, the Auditor has not taken any actions in the interim months with respect to rescheduling the next pre-hearing conference in this case. 28. The Auditor has not scheduled and has not conducted any formal hearings with respect to the issue of the removal of the Executrices and/or Trustees. 29. Notwithstanding the fact that the Orphans' Court has issued at least six (6) Orders since January 2008 which referred matters to the Auditor for purposes of a recommended order and/or an interim report, the Auditor has not issued any recommended orders or any interim reports despite the language in the Orphans' Court's Orders which directs him to do so. 30. Cognizant of the Orphans' Court's imposition of the May 31, 2008 deadline, and in consideration of the stalled Auditor's proceedings and the fact that prior petitions for removal of the Executrices and/or Trustees have languished as unresolved, the Movant files the instant "further procedural or dispositive-type motion" as advised by Judge Oler's Order dated October 3,2007. 5 31. For purposes of this motion, the Movant hereby incorporates by reference thereto as if fully set forth herein the averments of the previously filed first and second petitions for removal of the Executrices as identified hereinabove. 32. For purposes of this motion, the Movant hereby invokes and incorporates by reference thereto all remedies, claims, actions, and related relief available for the removal of executrices and/or trustees as set forth in the Probate, Estates and Fiduciaries Code, and further invokes and incorporates by reference thereto all remedies, rights, claims, entitlements, actions, and related relief available to the Movant as a beneficiary or interested party as set forth in the Probate, Estates, and Fiduciaries Code. 33. Pursuant to Cumberland County Rule of Civil Procedure 208.3(a)(9), the Movant has not obtained the concurrence of any counsel to the other interested parties inasmuch as the prior statements and representations of said counsel have indicated that the Movant would not receive cooperation from them with respect to such a motion. 34. Pursuant to Cumberland County Rule of Civil Procedure 208.3(a)(2), the Honorable Wesley Oler has previously ruled on prior motions filed by the parties hereto. 6 WHEREFORE, the Movant respectfully requests that this Honorable Court issue an appropriate Order GRANTING the instant Motion for Removal of the Executrices and/or Trustees, alternatively, issue an appropriate Order which schedules a hearing on this matter. Respectfully submitted, ~(f1ij~~~~. T?- Robert M. Mumma, II Box 58 Bowmansdale, P A 17008 (717) 612-9720 PROSE 7 CERTIFICATE OF SERVICE I, Robert M. Mumma, II hereby certify that a copy of the foregoing Further Motion for Removal of Executrices and/or Trustees was served on May 30,2008 by U.S. Mail, fIrst class, postage prepaid, addressed to: George B. Faller, Jr., Esquire Ivo V. Otto, III, Esquire Martson Law Offices 10 East High Street Carlisle, PAl 70 13 Brady Green, Esquire Morgan, Lewis & Bockius, LLP 1701 Market Street Philadelphia, PA 19103-2921 Ralph Jacobs, Esquire 1515 Market Street - Suite 705 Philadelphia, P A 19102 Linda Mumma Roth PO Box 480 Mechanicsburg, PA 17055 Taylor Andrews, Esquire Court-Appointed Auditor 78 West Pomfret Street Carlisle, PAl 7013 DATE: May 30, 2008 rJ2.tl,' /l111 ~ BY: ~4,-f!1 v.. 1L&v./1>'t1.~11t Robert M. Mumma, II Box 58 Bowmansdale, P A 17008 717 - 612 - 9720 PROSE